High Court of Australia
HIGH COURT (1957.
[HIGH COURT OF AUSTRALIA.]
THE QUEEN
AGAINST
SCHERGER AND OTHERS ; Ex Parte BRIDEKIRK.
H.C. or A. Defence—Air Force—Airmen—Application for discharge from service—Refusal by
1957. Ww
Sypey,
Dec. 10, 11, 19.
Dixon O.5., 'McTiernan, Williams, Webb and 'Taylor JJ.
Air Board—Irregular enlistment—Mandamus directed to Air Board to compel discharge—Whether mandamus appropriate remedy—Enlistment validated by subsequent regulation—Refusal of remedy—Air Force Regulations 1927-1952, Pt. IV, regs. 91, 92 (1) (5), 93, 94, 95, 99 (2)—Air Force Act 1923-1956, ss. 3(3), 9—Defence Act 1903-1956, s. 124.
Paragraph (5) of reg. 92 of the Air Force Regulations 1927-1952 provides :— " (5) A person who, prior to the commencement of this regulation, has engaged to serve for one of the periods specified in this regulation shall be bound to serve in the Air Force in accordance with the tenor of his oath of enlistment until he is discharged, dismissed or removed from the Air Force."
Held, that the paragraph suffices to overcome all irregularities in the enlist- ment voluntarily made of a person falling within its description.
In 1950 B., then aged sixteen years eight months, enlisted in the R.A.A.F. for a term of not less than three and not more than four years as an airman apprentice and for twelve years thereafter unless sooner discharged, dismissed or removed. B.'s enlistment was inconsistent with the provisions of the Air Force Regulations then obtaining in that he was under the age of eighteen years and had enlisted for a period longer than six years. In 1952 a new reg. 92 was adopted, par. (5) whereof is hereinbefore set out. The period of B.'s enlistment was one of the periods specified in such new regulation. Sub- sequently B. applied to the Air Board for his discharge pursuant to reg. 99 (2) upon the basis that he was not duly enlisted but the board relying upon reg. 92 (5) declined the application. B. sought a writ of mandamus directed to the members of the board to compel his discharge.
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